Analysis: Texas case could mark the end of affirmative action in the United States

For the first time since 2003 the Supreme Court will discuss whether affirmative action in university admissions is against the law. (AP Photo)

Is affirmative action in university admissions a measurement toward increasing the diversity of the student body, or does it violate the civil and constitutional rights of applicants to consider race and ethnicity in university admissions?

That’s what the Supreme Court will decide later this year. Earlier today the court said that it would once again confront the issue of affirmative action, using a case from the University of Texas for the possible landmark ruling.

The case involves a white student who filed suit claiming that the university’s policy to take race into consideration in the admission process violates her constitutional rights. After losing both at the district and appeals court level, she appealed to the Supreme Court.

The case, called Fisher v. University of Texas at Austin will be argued this fall, probably close to the presidential election. It’s the first time since 2003 that the court will look at the issue of race in university admissions. In 2003 the court narrowly approved the use of race in the admission process at universities. But the court has become more conservative with the retirement of Justice Sandra Day O’Connor, who craft that 2003 compromise, and her replacement by Justice Samuel Alito, a staunch foe of affirmative action.

Obama’s chief spokesman Jay Carney refused to comment directly on the case today at the press briefing, but he did offer some general comments.

“President Obama has said that, while he opposes quotas, and thinks an emphasis on universal and not race-specific programs is good policy, considering race along with other factors can be appropriate in certain circumstances. But again, I want to make sure that’s viewed as a broad statement of where he has been and where his position is broadly, not a reference to this specific case,” he said.

While the White House thus seemed a bit wary at the court’s decision to confront the issue once again, others celebrated the decision.

“The Supreme Court took a potentially historic step today when they agreed to review the unconstitutionality of including race in the college admissions process. Institutions of higher education have used the pursuit of ‘diversity’ as a legitimate excuse to discriminate, sanctioned by the highest court in the land,” Ward Connerly, the president of the American Civil Rights Institute and longtime critic of affirmative action.

The current case started in 2008, when Abigail Fisher, a white student who had been denied admission at the college of University of Texas, filed a lawsuit against the university. Most admitted students at the university are among the top 10 percent in their high school class, but for the remaining places, the university also considers race and ethnicity, and other factors, in order to increase the diversity of the student body.

Abigail Fisher was unhappy that the university took race into consideration when deciding which students should be admitted to the college. Together with another girl, who was also denied admission but has since dropped the case, she claimed that her civil and constitutional rights were violated by the policy of the university. Their argument was that they would have been admitted to the university if they weren’t white.

Both at the district court level in Austin and at the circuit court level in New Orleans the university won, but in September Abigail Fisher appealed to the Supreme Court.

If the Supreme Court rules in favor of the student, it could potentially have great consequences for affirmative action programs all over the United States. The results of the last couple of cases on the subject have had great impact. When the Supreme Court endorsed affirmative action in university admissions in 2003 in the Grutter v. Bolinger case, University of Texas resumed taking race into consideration in the admission process.

In 2003, 21 percent of the freshmen at University of Texas were Hispanic and African American. In 2007, four years after the endorsement, that number had grown to a quarter of the students.

In a statement issued by the University of Texas on the Supreme Court’s decision to take up the case, the university wrote:

“The Supreme Court wrote in the 2003 landmark Grutter v. Bollinger case that the nation’s future depends upon leaders educated and trained through wide exposure to the ideas and mores of students as diverse as this nation. Our admissions policy embodies that vision.

“It is vital for the university to weigh a multitude of factors when making admissions decisions about the balance of students who will make up each entering class. We must have the flexibility to consider each applicant’s unique experiences and background so we can provide the best environment in which to educate and train the students who will be our nation’s future leaders.”